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Parents defend religious-based exemptions for children's immunizations

The Associated Press

05.04.00

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CASPER, Wyo. — A federal lawsuit over exemptions for children's vaccinations has evolved into a conflict over constitutional rights of religious expression and privacy, says the attorney for a group of Wyoming parents.

"What we have is the state creating tension between the state and what everybody believes is a fundamental right," Robert Moxley told U.S. District Judge William Downes.

"It is a given that the parent of the child has the right to make decisions ... for the child," Moxley said on May 2. "The state is attempting to justify a scheme that overrides that right."

Moxley represents parents who asked the federal court in August to issue a temporary restraining order and preliminary injunction against the Wyoming Department of Health and others to block hearings on mandatory immunization waivers based on religion.

The state, Moxley said, has the right to protect public health, and the law requires that students who are not fully immunized — even with religious waivers — will be excluded from school attendance during outbreaks of vaccine-preventable diseases.

But the state doesn't have the right to allow health officers to judge the conscience of a parent asking for an immunization waiver on religious grounds, he said.

The case appears to be more about the state's ability to impose sanctions, namely excluding children from their right to public education, than immunizations, Moxley said.

But attorneys for the state countered that the law does not violate the parents' First or 14th Amendment rights.

"Beliefs must be religious in nature and sincerely held to rise to First Amendment protection" when a parent applies for a waiver, said Assistant Attorney General Marci Hoff.

Assistant Attorney General Francisco Romero added that constitutional law regarding the 14th Amendment does not deal with a right to privacy, except in rare cases such as abortion rights.

The state is not asserting anything about parental rights to raise their children, Romero said. "The decision to give (a child) a Hepatitis B shot doesn't affect his parents' ability to raise their child," he said.

Downes agreed with similar arguments last fall when he refused to grant the preliminary injunction because the Health Department stopped the hearings and the children involved still are in school, according to a Dec. 10 court order.

The parents failed to prove that they would suffer irreparable harm if the injunction wasn't granted, he ruled.

Since then, Moxley unsuccessfully filed motions to renew the temporary restraining order and the preliminary injunction.

Downes also refused to allow other plaintiffs to join the suit. A similar case is before the Wyoming Supreme Court, and Downes wants to stay apprised of that case as he decides the Cooper case, he said on May 2.

Both sides have agreed that the case could be resolved through filing cross-motions for summary judgment by the court.

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